110 A.3d 626 (D.C. 2015), 09-CV-893, Andrew v. American Imp. Ctr.

Docket Nº:09-CV-893
Citation:110 A.3d 626
Opinion Judge:Washington, Chief Judge.
Party Name:COLIN ANDREW, APPELLANT, v. AMERICAN IMPORT CENTER, APPELLEE, AND DISTRICT OF COLUMBIA, INTERVENOR
Attorney:Thomas C. Willcox for appellant. James C. McKay, Jr., with whom Irvin B. Nathan, then-Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Loren L. Alikhan, Deputy Solicitor General, were on the brief, for intervenor. V. David Zvenyach, with whom John Hoellen was on ...
Judge Panel:Before WASHINGTON, Chief Judge, THOMPSON, Associate Judge, and NEBEKER, Senior Judge.
Case Date:February 26, 2015
Court:Court of Appeals of Columbia District
 
FREE EXCERPT

Page 626

110 A.3d 626 (D.C. 2015)

COLIN ANDREW, APPELLANT,

v.

AMERICAN IMPORT CENTER, APPELLEE, AND DISTRICT OF COLUMBIA, INTERVENOR

No. 09-CV-893

Court of Appeals of Columbia District

February 26, 2015

Argued June 5, 2014

As Amended March 19, 2015.

Appeal from the Superior Court of the District of Columbia. (CAB-8450-08). (Hon. Anita M. Josey-Herring, Trial Judge).

Reversed and remanded.

Thomas C. Willcox for appellant.

James C. McKay, Jr., with whom Irvin B. Nathan, then-Attorney General for the District of Columbia, Todd S. Kim, Solicitor General, and Loren L. Alikhan, Deputy Solicitor General, were on the brief, for intervenor.

V. David Zvenyach, with whom John Hoellen was on the brief, for amicus curiae District of Columbia Council.

David R. Mahdavi filed a Statement in Lieu of Brief for appellee.

Before WASHINGTON, Chief Judge, THOMPSON, Associate Judge, and NEBEKER, Senior Judge.

OPINION

Page 627

Washington, Chief Judge.

Appellant Colin Andrew brought suit in the Superior Court against American Import Center (" AIC" ) and others, alleging breach of contract, fraud, and violations of the Consumer Protection Procedures Act arising out of his purchase of a car from AIC. The Superior Court stayed appellant's case and ordered the parties to proceed to arbitration pursuant to an arbitration agreement that was signed as part of the purchase transaction. Andrew appealed. The question before this court is whether we have jurisdiction to hear an appeal from an order compelling a consumer to arbitrate with a commercial entity based on an arbitration clause in an adhesion contract. For the following reasons, we hold that such an order is interlocutorily appealable pursuant to D.C. Code § 11-721 (a)(2)(A) (2012 Repl.). Further, we find that appellant raised a triable issue of fact as to the unconscionability of the arbitration agreement and we therefore remand the case to the trial court to hold an evidentiary hearing and make factual findings concerning unconscionability.

I. Facts

Appellant Colin Andrew brought suit against AIC, Tehran Ghasri (" Ghasri" ),

Page 628

and Wells Fargo Auto Finance (" Wells Fargo" ), alleging fraud, breach of contract, and violations of the District of Columbia Consumer Protection Procedures Act, D.C. Code § 28-3901 et seq. (2012 Repl.). Appellant claimed that in December of 2006, Ghasri, an AIC salesman, requested that he help a friend, Baback Fadavi (" Fadavi" ) purchase a vehicle. Fadavi was 90% blind, such that he could not obtain a driver's license or purchase a car, but he needed one so that his mother could drive him around. Appellant alleged that Ghasri asked him to guarantee the purchase of the vehicle, which Mrs. Fadavi would own. In reality, the contract that appellant signed listed him as the purchaser rather than the guarantor of the vehicle. The vehicle was delivered to Mrs. Fadavi, but the title was in appellant's name. The vehicle was later repossessed and sold, and appellant filed his suit after a deficiency of $8,817.50 was assessed against him.

AIC and Wells Fargo moved to dismiss appellant's complaint and compel arbitration because there was an arbitration clause in the finance contract he had signed. Andrew moved for discovery on the issue of whether the arbitration agreement was unconscionable. The trial court denied AIC's and Wells Fargo's motion to dismiss but granted their motion to compel arbitration, staying the proceedings in Superior Court pending completion of arbitration.[1] The trial court rejected appellant's unconscionability argument, concluding that he had not presented a triable issue of material fact. Appellant timely appealed. This court issued an order directing both parties to file briefs addressing whether we had jurisdiction to hear this appeal given first that, in the past, we have held that orders to compel arbitration are not appealable, and second, that it was not clear that the D.C. Council had the authority to pass D.C. Code § 16-4427 purporting to make such orders appealable.

II. Jurisdictional Analysis

In 1970, Congress enacted the District of Columbia Court Reorganization Act of 1970, Pub. L. No. 91-358, Title I, 84 Stat. 473 (1970), D.C. Code § 11-101 et seq. (2012 Repl.), establishing this court as " [t]he highest court of the District of Columbia" and providing that:

The Court of Appeals of Columbia District has jurisdiction of appeals from--

(1) all final orders and judgments of the Superior Court of the District of Columbia; [and] (2) interlocutory orders of the Superior Court of the District of Columbia-- (A) granting, continuing, modifying, refusing, or dissolving or refusing to dissolve or modify injunctions; . . .

D.C. Code § 11-721 (a) (2012 Repl.). Congress also passed the Home Rule Act, D.C. Code § 1-201.01 et seq. (2012 Repl.), with the intent of giving the D.C. Council broad authority to legislate upon " all rightful subjects of legislation within the District," § 1-203.02, but limiting the Council's ability to pass legislation that affects this court's jurisdiction:

(a) The Council shall have no authority to pass any act contrary to the provisions of this chapter except as specifically provided in this chapter, or to . . .

. . . . (4) Enact any act, resolution, or rule with respect to any provision of Title 11 (relating to organization and jurisdiction of the District of Columbia courts).

Page 629

§ 1-206.02 (a)(4).[2] Still, this court has repeatedly held that § 602 (a)(4) must be construed as a narrow exception to the Council's otherwise broad legislative power " so as not to thwart the paramount purpose of the [Home Rule Act], namely, to grant the inhabitants of the District of Columbia powers of local self-government." Bergman v. District of Columbia, 986 A.2d 1208, 1226 (D.C. 2010).

Subsequently, in 1977, the D.C. Council enacted the District of Columbia Uniform Arbitration Act (" UAA" ), D.C. Code § 16-4301 et seq. Relevant to the instant case was a section of the UAA that outlined whether (and which) arbitration orders could be appealed to this court. Section 16-4317 of the UAA read in relevant part:

(a) For purposes of writing an appeal, the following orders shall be deemed final:

(1) An order denying an application to compel arbitration . . .

D.C. Code 1978 Supp., tit. 16 app., s 18. Then, in American Fed'n of Gov't Emps. v. Koczak, 439 A.2d 478, 480 (D.C. 1981), this court examined this section of the UAA and concluded that as opposed to an order denying a motion to compel arbitration, an order granting a motion to compel arbitration was not appealable, for two reasons. First, the language of the UAA included orders denying a motion to compel arbitration on the list of final, appealable orders but did not similarly include orders to compel arbitration on that list. Id. Second, the omission of orders compelling arbitration from that list made sense given that an order to compel arbitration would not be considered a final order like an order denying a motion to compel arbitration because the former " does not dispose of the entire case on the merits. Rather, the parties' rights and obligations are finally determined only after arbitration is had. . . ." Id.

Finally, in 2007, the Council replaced the UAA with the District of Columbia Revised Uniform Arbitration Act (" RUAA" ), D.C. Code § 16-4401 et seq. (2012). The RUAA also contains a section that outlines when an appeal may be taken. § 16-4427. That section reads, in relevant part:

(a) An appeal may be taken from:

(1) An order denying or granting a motion to compel arbitration; . . .

§ 16-4427 (a)(1). The question currently before the court is whether this section of the RUAA violates § 602 (a)(4) of the Home Rule Act by impermissibly expanding this court's jurisdiction to allow parties to appeal from an order granting a motion to compel arbitration, a type of an order we have previously determined not to be appealable.

A. An order staying litigation and compelling the parties to arbitrate is not a final order under D.C. Code § 11-721 (a)(1).

This court has recognized the Supreme Court's " well-developed and long-standing" definition of a final order, which is " a decision that ends the litigation on the merits and leaves nothing more for the court to do but execute the judgment." Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 86, 121 S.Ct. 513, 148 L.Ed.2d 373 (2000) (internal quotation marks omitted); Crown Oil & Wax Co. v. Safeco Ins. Co., 429 A.2d 1376, 1379 (D.C. 1981) (explaining that as a " general rule . . . an order is final for purposes of appeal . . . [when] it disposes of the entire case on the merits" ). This court has specifically and repeatedly

Page 630

stated in several cases that an order granting a motion to compel arbitration and stay proceedings is not a final order.[3] Although these cases arose in the context of the UAA rather than the RUAA, in each case the court's opinion made clear that the exclusion of orders compelling arbitration from the list of final appealable orders in § 16-4317 was consistent with our case law interpreting § 11-721 (a)(1), and that we did not consider such orders final for purposes of appeal.

Similarly, in the instant case the order granting the motion to compel arbitration is not a final order and therefore is not appealable as such. As the Supreme Court explained in Green Tree Financial, while an order to compel arbitration entered in conjunction with a dismissal of the case on the merits results in a final order for purposes of appellate review, 531 U.S. at 87, " [h]ad the District Court entered a stay instead of a dismissal . . . that order would not be appealable." Id. at 87, n.2. This court has followed the Supreme...

To continue reading

FREE SIGN UP